Critics agree that much of Southeast Asia desperately needs judicial reform and rule of law. Yet, there is remarkably little comparative scholarship on law and legal institutions in the region. In this blog, I'll follow constitutional developments in Brunei, Burma (Myanmar), Cambodia, East Timor, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam, as well as the Association of Southeast Asian Nations (ASEAN).

Tuesday, September 25, 2012

Irony? What irony? (Myanmar/Burma)

Scrolling through the Myanmar Times website, I noticed an article with the headline "Hluttaw speaker promises independence for judiciary." Of course, given the Hluttaw's recent impeachment of the Constitutional Tribunal members, this at first seems ironic, to say the least. I should also note that Shwe Mann is not the only one - in a recent interview with VOA, Daw Aung San Suu Kyi warned investors that Burma lacks an independence judiciary. However, these speeches actually be signaling something else. Here are some possibilities:

- Just a speech

Obviously, it's possible that Shwe Mann was just giving a speech at a meeting between the Pyithu Hluttaw Rule of Law, Stability and Peace Committee and legal experts in Yangon and needed something to say. After all, he has been on the record for judicial independence before, so his stance isn't entirely new. Nonetheless, it is still necessary to reconcile his speech with recent events.

- All judges belong to the judiciary... except for those ones

It isn't entirely clear where the Constitutional Tribunal fits in the wider scheme of Myanmar's legal system. The constitutional drafters also seemed unsure. Even up to 2007, the drafters squeezed the tribunal in at the end of the constitution in a veritable grab-bag of provisions. The official 2008 version includes the tribunal under Chapter 6, which deals with the judiciary. However, even now, the subsection dealign with the tribunal is somewhat offset from the rest of Chapter 6. The constitution does not call tribunal members "judges", but rather "members". The members serve for only five-year terms, which is a de jure limit on their independence.

More broadly, the whole notion of a separate constitutional court under at traditional Kelsenian theory of constitutional review is that the regular judiciary cannot and should not exercise review. However, this is a bit difficult to reconcile into Myanmar constitutional law because Kelsenian theory is aimed at civil law countries, in which the legal code is the supreme source of law. Officially, Myanmar is still a common law country. During the parliamentary era (~1948-62), the Supreme Court could and did exercise constitutional review.

Shwe Mann's speech could reflect this ambiguity in that he might associate judicial independence only with the regular judiciary. However, in the same speech Myanmar Times also quotes him as stating that the Supreme Court is superior to all courts except for courts martial and the tribunal. While the Myanmar Times did not reprint an exact quote, it seems clear that Shwe Mann at least does not consider the tribunal a creature apart.

- Don't blame me, I'm only the messenger

It isn't entirely clear whether Shwe Mann actually supported impeachment or merely followed the whims of his caucus. After 301 Pyithu Hluttaw MPs signed the petition to impeach the tribunal members, Shwe Mann asked for time to allow the president to resolve the crisis. His first preference seems to have been to allow the tribunal members to resign voluntarily. Of course, without information from the cloakrooms, we'll never know. This recent speech could be his way of disassociating himself from the imbroglio.

- Que sera, sera

While the speech itself does not focus on the Constitutional Tribunal, its timing could be a sort of peace offering. In essence, even though the Hluttaw impeached the tribunal, "what's past is past." In fact, there are reasons to think that the recent impeachment was unique. First of all, the selection and appointment of the original nine Hluttaw members was conducted in secret. It's not clear how much of a voice the president and speakers, much less Hluttaw backbenchers, had. Some people complained more about the quality and qualifications of the tribunal members than about the "union-level organizations" case itself. For the record, as many or more people have also praised the tribunal members. My point is simply that some observers justified impeachment as a remedy to a deeper wrong. If Shwe Mann and Daw Suu are among them, then they might feel inclined to give a new Constitutional Tribunal bench greater independence.

- Whoops!

This is based purely on speculation, but one worth mentioning. It's possible that Shwe Mann and others have either changed their mind or received negative feedback about the impeachment. In particular, the impeachment might have spooked foreign investors, especially given the high-profile article in the Financial Times and Daw Suu's very public statements to foreign audiences warning businesses that Myanmar lacks an independent judiciary. After all, one of the rationales behind judicial independence is to reassure external stakeholders, especially businesses, that government power is not unconstrained. There is no evidence pointing towards this, but it would be worth seeing whether major business news outlets, such as the Economist, comment on the impeachment in their country reports.

None of this is to justify the impeachment, but it does alleviate my worries about the precedent it set. Nobody has publicly claimed that the judiciary must follow the "will of the people" - something occasionally heard even in America. Nobody has explicitly claimed that judicial independence does not apply to the Constitutional Tribunal. However, with the precedent of impeachment looming over the bench, the political leadership is going to have to take extra precautions to reassure the tribunal members.*

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About Dom

Dominic Nardi is a third year Ph.D. student at the University of Michigan in the Political Science Department. He is interested in judicial politics in developing countries, particularly Myanmar, the Philippines, and Indonesia. His dissertation research focuses on how non-state actors influence judicial behavior. In addition to his research at the U of M, he has also worked for legal organizations in Indonesia and the Philippines and has published articles about judicial politics in Southeast Asia both in law reviews and in popular media.